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[Federal Register Volume 78, Number 34 (Wednesday, February 20, 2013)]
[Rules and Regulations]
[Pages 11748-11751]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03761]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2007-1102; EPA-R05-OAR-2008-0782; FRL-9771-8]

Approval and Promulgation of Air Quality Implementation Plans; 
Ohio; PBR and PTIO

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: As additions to Ohio's State Implementation Plan (SIP) under 
the Clean Air Act, EPA is approving six Permit-by-Rule (PBR) 
provisions, a Permit to Install and Operate (PTIO) program, two 
permanent exemptions from the Permit to Install (PTI) requirement, and 
a General Permit program. The Ohio Environmental Protection Agency 
(OEPA) requested these rule revisions to make its air pollution permit 
program more efficient. Approving these additions will make the PBRs, 
PTIOs, and general permits Federally enforceable. Because these rule 
revisions will make Ohio's air permit program more efficient while 
continuing to protect human health and the environment, EPA approves 
the revisions.

DATES: This final rule is effective on March 22, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA R05 OAR 2007-1102; EPA-R05-OAR-2008-0782. All documents in the 
docket are listed on the www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, i.e., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 5, Air and Radiation Division, 77 West Jackson 
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. 
We recommend that you telephone Kaushal Gupta, Environmental Engineer, 
at (312) 886-6803 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Kaushal Gupta, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 886-6803, gupta.kaushal@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What does this document address?
II. What program changes is EPA approving?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What does this document address?

    This document addresses requests from Ohio to incorporate the 
following rules into the Ohio SIP.

1. PBR and Permanent Exemption Provisions

    Ohio's Federally approved construction program, Ohio Administrative 
Code (OAC) 3745-31 (``Permits to Install New Sources of Pollution'') 
provides the authority for OEPA to issue PTIs to new sources of air 
pollution or modifications to existing sources of air pollution. For 
attainment areas, the program was conditionally approved into Ohio's 
SIP on October 10, 2001 (66 FR 51570) and fully approved on January 22, 
2003 (68 FR 2909). For nonattainment areas, the program was fully 
approved on January 10, 2003 (68 FR 1366). Included in this program at 
OAC 3745-31-03 (``Permit to install exemptions'') are exemptions from 
the requirement to obtain a PTI before constructing or modifying a 
source of air pollution. The types of exemptions include permanent 
exemptions, Federal-based exemptions, discretionary exemptions, and PBR 
exemptions (exempting certain sources from the PTI requirement as long 
as they comply with the relevant provisions of the PBR rule).
    On April 24, 2006, EPA received a request from OEPA to approve the 
addition of two permanent exemptions and six PBR provisions to the SIP.

2. PTIO and General Permit Programs

    Prior to the rulemaking, a minor source (that is, a source not 
subject to Title V of the Clean Air Act) in Ohio would be issued both a 
PTI under OAC 3745-31 and a Permit to Operate (PTO) under OAC 3745-35 
(``Air Permits to Operate and Variances''). Ohio is now combining both 
permit programs into a new PTIO program. Under the PTIO program, a 
minor source would be issued one PTIO instead of a PTI and a PTO.
    On June 30, 2008, the state regulations to implement the PTIO 
program became effective and OAC 3745-35 was rescinded. On July 18, 
2008, OEPA submitted to EPA a request to approve the addition of the 
PTIO program and a General Permit program to the SIP. The changes to 
Ohio's SIP involve the modification of various parts of OAC 3745-31, 
the removal of OAC 3745-35, and the addition of OAC 3745-31-29 to 
enable the issuance of Federally enforceable general PTIs and general 
PTIOs.
    On October 1, 2012, EPA approved the aforementioned PBR, permanent 
exemption, PTIO, and General Permit program provisions (77 FR 59751) as 
a revision to Ohio's SIP. However, the provisions included the 
following terms which EPA had not intended to act on:
     The SIP revision classified municipal incinerators capable 
of charging more than 250 tons of refuse per day as having a major 
stationary source emission threshold of 100 tons per year or more. OAC 
3745-31-01(LLL)(2)(a)(ix).
     The SIP revision allowed OEPA Director's discretion for 
complying with the public participation notification requirements for 
Federal Land Managers. OAC 3745-31-06(H)(2)(d).
     The SIP revision allowed Director's discretion and 
specific exemptions with regard to preconstruction activities. OAC 
3745-31-33.

EPA withdrew its approval on November 23, 2012 (77 FR 70121). This 
document approves the PBR, permanent exemption, PTIO, and General 
Permit

[[Page 11749]]

program provisions without taking action on the above language. It is a 
final action based on the proposed approval published on October 1, 
2012 (77 FR 59879).

II. What program changes is EPA approving?

1. PBR and Permanent Exemption Provisions

    EPA is approving the requested modifications and additions to the 
permanent exemption and PBR provisions in OAC 3745-31-03. The 
significant changes are as follows.
    The permanent exemption from the requirement to obtain a PTI for 
organic liquid storage tanks is being expanded to cover larger tanks. 
Currently, the exemption only applies to tanks with a capacity less 
than 10,000-gallons; the modification would exempt tanks of less than 
19,815-gallon capacity (except for gasoline storage tanks at bulk 
gasoline plants), tanks between 19,815 and 39,894-gallon capacity with 
maximum true vapor pressure less than 2.176 pounds per square inch 
absolute (psia), and tanks of 39,894-gallon or greater capacity with 
maximum true vapor pressure less than 0.508 psia. Note that permanent 
exemptions under this rule do not exempt any source from the 
requirements of the Clean Air Act, including but not limited to, being 
considered for purposes of determining whether a facility constitutes a 
major source or being included in a Title V permit application.
    PBR exemptions from the requirement to apply for individual PTIs 
are being added for auto body refinishing facilities, gasoline 
dispensing facilities with Stage I controls, gasoline dispensing 
facilities with Stage I and Stage II controls, boilers and heaters, 
small printing facilities, and mid-size printing facilities that meet 
certain size, throughput, and process requirements. Each PBR exemption 
has requirements for emission limitation and/or control, monitoring 
and/or recordkeeping, reporting, and testing. Furthermore, the PBR 
exemptions rule now includes general provisions for recordkeeping, 
record retention, notification, and reporting requirements that apply 
to all sources utilizing the PBR exemptions. The general provisions 
clarify that the PBR exemptions do not exempt any source from the 
requirements of the Clean Air Act, including but not limited to, being 
considered for purposes of determining whether a facility constitutes a 
major source or being included in a Title V permit application.
    In a December 1, 2008, letter, Ohio provided technical support for 
the PBR and PTIO provisions to demonstrate that the provisions are 
protective of the national ambient air quality standards, prevention of 
significant deterioration increments, reasonable further progress 
demonstrations and visibility, and are not in violation of section 193 
of the Clean Air Act, the ``General Savings Clause.''
    In a February 14, 2012, letter, Ohio provided a survey of the 
estimated emissions from the state's organic liquid storage tanks to 
demonstrate that the modified permanent exemption for organic liquid 
storage tanks would have no negative impact on air quality. In a May 
24, 2012, email, Ohio clarified that in the context of this exemption, 
an ``organic liquid'' is an organic compound at the temperature and 
pressure experienced inside the storage tank, and that the organic 
liquid would have to remain a liquid to qualify for the exemption. The 
email further clarified that the ``submerged fill'' mentioned in this 
rule is the same as a ``submerged fill pipe'' as defined in OAC 3745-
21-01(C)(6).

2. PTIO and General Permit Programs

    OAC Chapter 3745-35, which contained the rules for PTOs and 
Federally Enforceable State Operating Permits, is being rescinded in 
its entirety from the SIP. OAC 3745-31-29 (``General permits-to-install 
and general PTIO'') is being added to the SIP to make Ohio's general 
PTIs and general PTIOs Federally enforceable. General PTIs and general 
PTIOs are based on model permits issued by OEPA. Sources may apply for 
coverage under a model permit rather than apply for individual permits. 
Only minor sources may qualify for coverage under a general permit.
    We are not taking action on OAC 3745-31-33 (``Site preparation 
activities prior to obtaining a final permit-to-install or PTIO''), 
which allows Director's discretion and specific exemptions with regard 
to preconstruction activities. This rule will not be part of the SIP.
    Other, previously approved parts of Ohio's SIP are being modified 
as follows:
    a. OAC 3745-15-03 (``Submission of emission information''), is 
being modified to replace all instances of ``Board Director'' to 
``Director.''
    b. OAC 3745-31-01 (``Definitions''), which provides definitions for 
the permit program, is being expanded to include definitions for 
``permits to install and operate,'' ``PTIOs,'' and ``express permit 
processing.'' The SIP revision submittal includes changes to the 
definitions of ``Air contaminant source'' and ``Major stationary 
source'' but, per OEPA's request in its July 18, 2008, submittal, we 
are not approving these two changes at this time. Furthermore, we are 
not taking action on 3745-31-01(LLL)(2)(a)(ix) which classifies 
municipal incinerators capable of charging more than 250 tons of refuse 
per day as having a major stationary source emission threshold of 100 
tons per year or more. This provision will not be part of the SIP.
    c. OAC 3745-31-02 (``Requirements'') now requires sources to obtain 
PTIs or PTIOs before installation or modification, whether or not such 
sources are subject to Title V of the Clean Air Act (administered in 
Ohio under OAC 3745-77). Existing PTIs and PTOs remain effective until 
superseded by PTIOs. Note that this rule no longer contains the 
previously approved rule's provisions applying to solid waste disposal 
facilities and land application of sludge.
    d. OAC 3745-31-04 (``Applications'') is being expanded to require 
PTIO applications.
    e. OAC 3745-31-05 (``Criteria for decision by the director'') is 
being expanded to require PTIOs to contain the Best Available 
Technology (BAT), which is a previously SIP-approved requirement. 
Certain terms from the rescinded OAC 3745-35, such as conditional 
permits, are being incorporated into the new PTIO rules. Per Ohio's 
request in its July 18, 2008, submittal, we are not taking action on 
the provision that exempts sources with the potential to emit less than 
10 tons per year from the BAT requirement. This provision will not be 
part of the SIP.
    f. OAC 3745-31-06 (``Termination'') is being rescinded in its 
entirety and replaced by a new OAC 3745-31-06 (``Completeness 
determination, processing requirements, public participation, public 
notice, and issuance''). We are not approving OAC 3745-31-06(H)(2)(d) 
which allows Director's discretion for complying with the public 
participation notification requirements for Federal Land Managers.
    g. OAC 3745-31-07 (``Revocation'') is being expanded to cover 
termination, expiration, renewal, revision, and transfer.
    h. OAC 3745-31-08 (``Procedure for decision by director'') is being 
rescinded in its entirety and replaced by a new OAC 3745-31-08 
(``Registration status permit-to-operate'') that provides the ongoing 
requirements for non-Title V sources that received registration status 
under the rescinded OAC 3745-35.

[[Page 11750]]

    i. OAC 3745-31-09 (``Air permit-to-install completeness 
determinations, public participation, and public notice'') is being 
rescinded in its entirety and replaced by a new OAC 3745-31-09 
(``Variances on operation'') that has the provisions for variances that 
were in the rescinded 3745-35.
    j. OAC 3745-31-10 (``Air stationary source obligations'') is 
undergoing relocation of certain terms to other parts of the SIP.
    k. OAC 3745-31-20 is undergoing minor revisions to update rule 
citations.
    l. OAC 3745-31-22 is undergoing removal of two references to 
pollution control projects, a component of Federally required New 
Source Review (NSR) Reform regulations that was vacated from the 
Federal NSR program.

III. What action is EPA taking?

    EPA is approving the modification of OAC 3745-31-03 to incorporate 
PBRs for auto body refinishing facilities, gasoline dispensing 
facilities with Stage I controls, gasoline dispensing facilities with 
Stage I and Stage II controls, boilers and heaters, small printing 
facilities, and mid-size printing facilities. EPA is approving the 
modification of OAC 3745-31-03 to incorporate permanent exemptions for 
organic liquid storage tanks of less than 19,815-gallon capacity, 
between 19,815 and 39,894-gallon capacity, and tanks of 39,894-gallon 
or greater capacity. EPA is approving the rescission of OAC 3745-35 and 
the modification of OAC 3745-15-03, 3745-31-01, 3745-31-02, 3745-31-04, 
3745-31-05, 3745-31-06, 3745-31-07, 3745-31-08, 3745-31-09, 3745-31-10, 
3745-31-20, and 3745-31-22 to accommodate Ohio's PTIO program, 
reorganize other provisions, and remove vacated NSR Reform provisions. 
EPA is approving OAC 3745-31-29, the program for General PTIs and 
General PTIOs, as an addition to the SIP.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Clean Air Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 22, 2013. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: December 28, 2012.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart KK--Ohio

0
2. Section 52.1870 is amended by revising paragraphs (c)(42), (c)(51), 
(c)(98)(i), and (c)(119)(i)(A), and by adding paragraph (c)(156) to 
read as follows:

Sec.  52.1870  Identification of plan.

* * * * *
    (c) * * *
    (42) On February 25, 1980, the State of Ohio submitted the revised 
Ohio Administrative Code (OAC) Rules 3745-35-01 through 3745-35-04 
which set forth requirements for air permits to operate and variances. 
These rules were adopted on September 28, 1979 and became effective in 
Ohio on November 7, 1979. Rescinded in 2008; see paragraph (c)(156) of 
this section.
* * * * *
    (51) On October 1, 1982, and February 28, 1983 the State of Ohio 
submitted revisions to Ohio Administrative Code (OAC) Rules 3745-35-03 
which set forth requirements for obtaining

[[Page 11751]]

variances. Rescinded in 2008; see paragraph (c)(156) of this section.
* * * * *
    (98) * * *
    (i) Incorporation by reference. Rule 3745-35-07, adopted November 
3, 1994, effective November 18, 1994. Rescinded in 2008; see paragraph 
(c)(156) of this section.
* * * * *
    (119) * * *
    (i) * * *
    (A) Ohio Administrative Code 3745-35-02, adopted April 4, 1994, 
effective April 20, 1994. Rescinded in 2008; see paragraph (c)(156) of 
this section.
* * * * *
    (156) On April 24, 2006, Ohio EPA submitted two permanent 
exemptions from the Permit to Install program and six Permit-by-Rule 
provisions for approval into its SIP. On July 18, 2008, Ohio EPA 
submitted provisions for a Permit to Install and Operate (PTIO) program 
and a general permit program for approval into its SIP. The changes to 
Ohio's SIP involve the modification of various parts of OAC 3745-31, 
the removal of OAC 3745-35, and the addition of OAC 3745-31-29 to 
enable the issuance of federally enforceable general PTIs and general 
PTIOs. On June 30, 2008, the state regulations to implement the PTIO 
program became effective and OAC 3745-35 was rescinded.
    (i) Incorporation by reference.
    (A) Paragraph (A) of Ohio Administrative Code Rule 3745-15-03, 
``Submission of emission information.'', effective June 30, 2008.
    (B) Ohio Administrative Code Rule 3745-31-01, ``Definitions.'', 
effective December 14, 2007, except for paragraphs (I), 
(LLL)(2)(a)(ix), (LLL)(2)(a)(xxi), (LLL)(4)(t), and (QQQ)(1)(b).
    (C) Ohio Administrative Code Rule 3745-31-02, ``Applicability, 
requirements, and obligations.'', effective June 30, 2008.
    (D) Ohio Administrative Code Rule 3745-31-03, ``Exemptions.'', 
effective June 30, 2008.
    (E) Ohio Administrative Code Rule 3745-31-04, ``Applications.'', 
effective June 30, 2008.
    (F) Ohio Administrative Code Rule 3745-31-05, ``Criteria for 
decision by the director.'', effective June 30, 2008, except for 
paragraph (A)(3)(a)(ii).
    (G) Ohio Administrative Code Rule 3745-31-06, ``Completeness 
determinations, processing requirements, public participation, public 
notice, and issuance.'', effective June 30, 2008, except for paragraph 
(H)(2)(d).
    (H) Ohio Administrative Code Rule 3745-31-07, ``Termination, 
revocation, expiration, renewal, revision and transfer.'', effective 
June 30, 2008.
    (I) Ohio Administrative Code Rule 3745-31-08, ``Registration status 
permit-to-operate.'', effective June 30, 2008.
    (J) Ohio Administrative Code Rule 3745-31-09, ``Variances on 
operation.'', effective June 30, 2008.
    (K) Ohio Administrative Code Rule 3745-31-10, ``NSR projects at 
existing emissions units at a major stationary source.'', effective 
June 30, 2008.
    (L) Ohio Administrative Code Rule 3745-31-20, ``Attainment 
provisions--innovative control technology.'', effective June 30, 2008.
    (M) Ohio Administrative Code Rule 3745-31-22, ``Nonattainment 
provisions--conditions for approval.'', effective June 30, 2008.
    (N) Ohio Administrative Code Rule 3745-31-29, ``General permit-to-
install and general PTIO.'', effective June 30, 2008.
    (O) Ohio Administrative Code Rule 3745-31-32, ``Plantwide 
applicability limit (PAL).'', effective June 30, 2008.
    (P) June 2, 2008, ``Director's Final Findings and Orders'', signed 
by Chris Korleski, Director, Ohio EPA.

[FR Doc. 2013-03761 Filed 2-19-13; 8:45 am]
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